Shoemark v Hyne & Son Pty Ltd - [2025] NSWPICMP 584

DETERMINATION OF APPEAL PANEL
CITATION:	Shoemark v Hyne & Son Pty Ltd [2025] NSWPICMP 584
APPELLANT:	Kim Shoemark
RESPONDENT:	Hyne & Son Pty Limited
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	8 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by claimant from 14% whole person impairment (WPI) assessment; whether section 323 deduction of one-tenth erroneous; whether 0% for scarring erroneous; whether assessment of hip replacement surgery erroneous; Held – section 323 deduction based on assumption and not in the light of the evidence; Cole v Wenaline Pty Ltd considered and applied; scarring assessment confirmed; Medical Assessor not obliged to comment on experts view; Sydney Local Health District v Chan, and Wingfoot Australia Partners Pty Ltd v Kocak applied; assessment of ‘good’ result common to all experts in complex and multifactorial exercise required by American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed; MAC revoked; 15% WPI substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 February 2025 Kim Shoemark, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
31 January 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

RELEVANT FACTUAL BACKGROUND

On 22 October 2024 this matter was referred to the Medical Assessor for a WPI assessment relating to the injury to the left lower extremity and scarring (TEMSKI) which occurred on
20 July 2020.
Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Shoemark v Hyne & Son Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWPICMP 584
Decision Date: 8 August 2025

CaseChat Overview and Summary

Shoemark, the claimant, appealed a Medical Assessment Certificate (MAC) which assessed her whole person impairment (WPI) at 14%, following a workplace injury. Hyne & Son Pty Ltd, the defendant, were the employer at the time of the injury. The dispute was heard in the Workers Compensation Magistrate's Court. The primary legal issues for the court to decide were whether the deduction of one-tenth under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was erroneous, whether the assessment of 0% for scarring was correct, and whether the assessment of the need for hip replacement surgery was flawed.

The court found that the deduction under section 323 was based on an assumption rather than the evidence provided, which was an error. The case of Cole v Wenaline Pty Ltd was considered and applied to support this finding. The court also found that the assessment of scarring at 0% was confirmed, and the Medical Assessor was not required to comment on the expert's view, as per the cases of Sydney Local Health District v Chan and Wingfoot Australia Partners Pty Ltd v Kocak. The court determined that the assessment of a 'good' result was common to all experts and was a complex, multifactorial exercise as required by the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed. Consequently, the MAC was revoked, and a 15% WPI was substituted.

As a result of the court's decision, the MAC was revoked, and a new assessment of 15% WPI was substituted, providing Shoemark with a revised compensation amount based on the court's findings.

Orders